Nance v. Rees

• Court: Supreme Court of Delaware
• Writing for the Court: SOUTHERLAND; WOLCOTT
• Citation: Nance v. Rees, 161 A.2d 795, 52 Del. 533, 2 Storey 533 (Del. 1960)
• Decision Date: 09 May 1960
• Parties: , 52 Del. 533 Daniel NANCE, Appellant, v. Andrew REES, Appellee. Janet B. RINEER and George W. Rineer, Plaintiffs, v. STATE of Delaware, Peter W. Steil and Angelo Citro, Defendants and Third Party Plaintiffs, v. Francis R. BRADLEY, Third Party Defendant.

Page 795

161 A.2d 795

2 Storey 533, 52 Del. 533

Daniel NANCE, Appellant, v. Andrew REES, Appellee.

Janet B. RINEER and George W. Rineer, Plaintiffs, v. STATE of Delaware, Peter W. Steil and Angelo Citro, Defendants and Third Party Plaintiffs, v. Francis R. BRADLEY, Third Party Defendant.

Supreme Court of Delaware.

May 9, 1960.

An appeal and a certification from the Superior Court of New Castle County.

John Biggs, III, and John Merwin Bader, Wilmington, for appellant.

William Prickett, Jr., Wilmington, for appellee.

James P. D'Angelo and Stanley T. Czajkowski, Wilmington, for third-party defendant.

F. Alton Tybout, Wilmington, for defendants and third-party plaintiffs.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

WOLCOTT, Justice.

Nance v. Rees raises two questions for our decision. First, was there error in the charge of the trial judge to the jury and, second, is 10 Del.C. § 4541-s 4543, authorizing the striking of special juries, unconstitutional?

Subsequent to that appeal, Rineer v. State, et al., No. 12, 1960 was certified to us raising the same constitutional question. By stipulation entered in No. 12, 1960, the parties to that cause adopted the briefs and oral argument which had theretofore been presented to us in the Nance appeal.

We thereupon consolidated the two causes for decision and, in so doing, avoided the necessity of passing upon a preliminary question raised by the appellee in the Nance appeal as to the timeliness of the objection to the striking of a special jury in that case.

Preliminarily, we decide the first question raised in the Nance appeal since it is not common to both causes.

The Nance case is one for personal injuries arising out of an accident which occurred on the highways of New Castle County in which the plaintiff, a pedestrian, was involved in a collision with the vehicle of the defendant.

The parties have different versions of the facts. The plaintiff testified that he was standing on the west shoulder of the highway after sunset, carrying no light or reflector, and while so standing there was struck by the motor vehicle of the defendant.

The defendant testified that as his vehicle was proceeding along the highway he saw the plaintiff not far in front of him walking across the shoulder of the highway; that he thereupon swerved his vehicle to the left and applied the brakes, but that the plaintiff continued to walk forward and collided with the defendant's vehicle at a point in the right rear.

Each party charged the other with negligence based upon the violation of different sections of the Motor Vehicle Code, 21 Del.C. § 101 et seq. The specific sections are not important to the decision of the question raised.

The plaintiff requested the trial judge to instruct the jury that violation of a section of the Motor Vehicle Code was evidence of negligence. The defendant requested the trial judge to instruct the jury that violation of a section of the Motor Vehicle Code was negligence per se. The court rejected the plaintiff's requested prayer and stated that the charge would be made in accordance with the defendant's request. However, in actually instructing the jury, the court stated that if the plaintiff violated the statute in question, and if such violation was a proximate cause of the accident, the plaintiff was contributorily negligent.

With respect to the defendant's negligence, the court instructed the jury that if it found the defendant to have violated the particular statute involved, and if the jury found such violation to be a proximate cause of the accident, in that event the defendant's violation of the statute was considered 'in law, as evidence of negligence or as constituting negligence per se', and concluded that if the defendant violated any statute 'then the statutory violation may be considered by you as evidence of negligence'.

Following the instructions to the jury, the plaintiff called to the attention of the trial judge the apparent discrepancy of his instructions upon negligence arising from the violation of motor vehicle statutes. The trial judge recalled the jury and, in order to clear up any apparent discrepancy in his charge, stated inter alia: 'Now it matters not which party violates a statute, that is evidence of negligence'.

Before us the plaintiff argues, first, that his requested charge on negligence was not given and, second, that in charging as he in fact did, the trial judge confused the jury.

As to the argument that it was error for the trial judge to refuse to charge the jury as the plaintiff requested, the answer is that to have done so would have been contrary to the law of this state. The rule applied repeatedly in Delaware courts in personal injury cases is that the violation of a statute enacted for the safety of others is negligence in law or negligence per se. Campbell v. Walker, 2 Boyce 41, 78 A. 601; Farrow v. Hoffecker, 7 Pennewill 223, 79 A. 920; Lynch v. Lynch, 9 W.W.Harr. 1, 195 A. 799; Wealth v. Renai, 10 Terry 289, 114 A.2d 809.

Plaintiff cites Giles v. Diamond State Iron Co., 7 Houst. 453, 8 A. 368, in support of his argument. If that case, however, does in fact support the plaintiff's argument, it must now be regarded as no longer the law by reason of the later decisions above cited. There is, therefore, no merit to the first argument made by the plaintiff.

With respect to the second phase of the plaintiff's argument under this point, we are of the opinion that the recall of the jury by the trial judge and the further instructions given by him clarified whatever discrepancy there may have been in the charge, or any confusion that may have remained in the jury's mind. We furthermore note that upon recall of the jury the further instructions given were those requested by the plaintiff, even though, as we have pointed out, such instructions were erroneous. In any event, we do not think the plaintiff can be heard to complain of what took place since we find no prejudicial error in the proceedings.

We turn now to the question of the constitutionality of the special jury statute. Plaintiffs argue that 10 Del.C. § 4541, authorizing the ordering of special juries for trials, is unconstitutional. The argument is that it violates Article I, Section 4 of the Delaware Constitution, Del.C.Ann. which requires that trial by jury shall be as heretofore.

The striking of special juries for the trial of causes is provided by 10 Del.C. §§ 4541-4543. By § 4541(a) it is provided that 'a special jury for the trial of a cause, shall be ordered by the Court upon the application of either party'. § 4541(b)(c) and (d) provide for the mechanics of drawing, striking and summonsing the special jurymen. § 4542 provides the method of impaneling a special jury. § 4543 provides that the party applying for a special jury shall pay the expense of the special jury which shall not be taxed as costs in the case, unless the court, immediately after the trial, shall certify on the record that the cause was proper to be tried by a special jury. § 4543 further authorizes the court, in its discretion, to order payment of the costs of striking and summonsing a special jury before the trial of the cause.

The statutory law now embodied in 10 Del.C. §§ 4541-4543 has an ancient history in the statutes of Delaware. The first complete act regulating the calling of special juries was enacted in 1810 (4 Laws, Ch. CXX, p. 322). Basically, the act of 1810 is the statute of today with the exception that the 1810 act 'authorizes and requires' the court, upon the motion of either party, to order a special jury to be struck, while the present statute directs that the court upon application 'shall' order a special jury. The 1810 act appears in the same form in 1829 Code, Ch. 7, p. 119.

The codification of 1852 continued the same statute except that the words 'authorized and directed' were changed to read 'shall'. Thereafter, through the various Codes the wording of the statute has not been changed fundamentally. The provisions of 10 Del.C. §§ 4541-4543 are substantially the same as 1852 Code, Ch. 7.

The present statutory provisions relating to special juries, then are traceable directly back to 1810 when, what is apparently the first comprehensive statute, was enacted. It seems apparent, however, that the practice of using struck ^* or special juries existed in this state prior to that year. For example, in 1793 An Act For More Certainly Obtaining Returns of Impartial Juries, And Their Better Regulation (2 Laws, Ch. VIII c, p. 1071), directed the return by the sheriff of a jury panel, except 'in cases where a special jury shall be struck by rule of court'. This is a clear indication that in 1793 special juries were struck in accordance with a then existing rule of court. It seems apparent that there was no specific statutory authority for the practice.

The only early rule of court now of record is Rule 17 of the Supreme Court (then a trial court of unlimited jurisdiction) promulgated at the April Term, 1790 (1 Del.Cas. XL) which provided that if a cause in which a special jury had been struck was not tried at the term for which such jury had been summonsed, the jury would be discharged and the imposition of costs would be at the court's discretion. This is unmistakable proof that in 1790 the practice of striking special juries was established.

The few early reported cases also indicate that the striking of special juries was an established practice in Delaware courts from an early time. See Polk's Lessee v. Ross, 1794, 1 Del.Cas. 40; Burton's Lessee v. Prettyman, 1793, 1 Del.Cas. 11, s. c. 2 Del.Cas. 4; and Newbold's Lessee v. Stockley, 1793, 1 Del.Cas. 10. In view of these early sources, there can be no doubt but that the practice of summonsing struck juries existed in Delaware prior to the passage of the Act of 1810. There can be no doubt, also, but that the practice did not originate in a Delaware statute, since no such stat...